Conducting Investigations - Are Changes to a Draft Report Permissible?
Whilst this will always depend on the facts of any particular matter, in a recent case the removal of evaluative conclusions from a draft investigation report did not render the dismissal unfair.
What can employers learn from this case?
Dronsfield v The University of Reading
Dr Dronsfield was the subject of a disciplinary process which resulted in his dismissal. The decision of the Employment Tribunal (ET) was that Dr Dronsfield was fairly dismissed. Dr Dronsfield appealed the decision.
The principal ground of appeal concerned the evidence that material in a draft of the investigation report was removed from the final report, in particular various conclusions reached by the investigator about the seriousness of Dr Dronsfield's conduct.
The ET found that the conclusions had been removed following advice that judgments as to the seriousness of the conduct should be left to any disciplinary tribunal that was subsequently appointed. The ET concluded that adopting that approach was not unfair.
The Employment Appeal Tribunal (EAT) noted that drafts of a report would not normally be provided to the decision-maker responsible for the next stage of the disciplinary process. The EAT upheld the ET decision that it was not unreasonable or unfair for the investigator to act on advice that evaluative conclusions should not be included in the final report.
Best Practice for Employers
- When conducting investigations into employee misconduct, focus on the facts and report the evidence in an unbiased way. Making evaluative judgments on the seriousness of an employee's conduct should usually be left to the disciplinary officer or panel.
- Suggesting that an investigator amends their report will not necessarily render any subsequent dismissal unfair. However, ensure that any advice does not overstep the mark. There are reported cases where, unlike the case reported above, investigators or decision makers have felt undue pressure to change their findings.
- Consider providing terms of reference which act as a guide for investigators containing points of best practice.